The dictum in this case has been the subject of a great deal of commentary,
but before going on to adding some more, something should be said about the
actual holding and decree, which are wrong. Marbury was claiming a property
right in a commission as Justice of the Peace granted to him by the outgoing
President John Adams as one of his final acts, against a refusal to accept
delivery of the commission by Madison, as a cabinet official under President
Jefferson, the successor to Adams. Chief Justice Marshall ruled that Marbury
had such a property right, but that the Supreme Court lacked the constitutional
authority to issue a writ of mandamus to Madison, and the Judiciary Act of 1789
was unconstitutional in assigning it original jurisdiction for such a writ of
mandamus.

This decision must be regarded as political. Marshall was afraid of being
impeached and removed from the Court if he ruled in favor of Marbury. Pressure
was strong to do that for Justice Samuel Chase, who would be tried in the
Senate two years later for his part in the Alien and Sedition Acts trials. So
Marshall temporized in this case, but in so doing also delivered one of the
more important dicta that would guide further jurisprudence ever since.

Did Marbury have a property interest in his commission? No, he did not. He
would have had under the British monarchical constitution, but under the
Constitution for the United States, there can be no property right in an
appointment to a public office. Even if there were, the procedure established
of granting a commission that did not become effective until delivered and
accepted made the grant incomplete without the acceptance, just as a grant deed
of real property is not complete until delivered and accepted by the grantee.
Madison had the authority to refuse to accept delivery, and when he did, any
rights Marbury might have had terminated. The right had not vested.

Does the Court have the authority to issue a writ of mandamus to an
executive branch official? Of course it does. Any order of any court is an
order to an executive branch official. It might be directed primarily at a
civilian, but implicit is the authority to an official to enforce it if the
subject of the order fails to comply.

On the other hand, Marshall is correct on one point. If the official refused
to obey the order there is not much the court can do about it. At that point
the only remaining remedy is removal from office, and perhaps prosecution after
removal.

So, the Judiciary Act of 1789 was not unconstitutional on this point.
However, the dictum explaining the duty of the court to rule a statute
unconstitutional if it was in conflict with the constitution was sound, as far
as it went. The problem was that it left the impression that this was the
exercise of a power of the court that only the court had. The misleading
statement was, "It is emphatically the province and duty of the judicial
department to say what the law is." It is misleading because it connotes
that as the "province" is is exclusive of the other departments. The
logic of constitutional republican government is that everyone, not just the
courts, and not just public officials, has the duty to enforce the law, and,
where conflicts in the law arise, resolve those conflicts and apply the correct
law. When one of the laws in conflict is the constitution, then the duty is of
constitutional review, which is only judicial review when it is
judges that happen to do it. It is not an exclusive power of the courts. It is
a duty of everyone subject to the Constitution.

So what happens if the Supreme Court rules in a case that a statute is
unconstitutional, but the Congress or the President disagrees with them? They
are bound to respect the decision in that case, unless they have strong enough
conviction of the wrongness of the decision to refuse to abide by it, but the
ruling does not remove the statute from the books. It could still be enforced
by the Executive in other cases. But the Court is indicating by its decision
that it will not enforce the statute in other cases, and that any attempt to do
so by the other branches will not be productive. Confronted with that refusal
by the Judiciary to enforce, it is to be expected that the Executive will stop
trying to enforce it, and the Congress will stop trying to fund it. It takes
all three branches to cooperate in establishing and enforcing a law, and the
refusal of any one of them defeats the effort.

The same principle extends to civilians. If jurors refuse to convict under a
criminal statute that at least one of them considers to be unconstitutional,
then the enforcement of the act fails, and it becomes a dead letter. If the
required majority of the jury in a civil case fail to support the plaintiff in
an action authorized by law, then that law becomes moot.

This also points to the conclusion that under a constitutional requirement
for unanimous verdicts of twelve jurors in criminal trials, if the objective is
to have a 50 percent chance of a prosecution succeeding in obtaining a guilty
verdict, and the jury is selected at random from the population, then there
needs to be at least 94 percent support for the criminal statute in the
community. If there is not, then mathematically there is a better than 50
percent chance that in a random jury of twelve at least one of them will
disagree with the law enough to refuse to convict someone of violating it. The
choice of a jury size of twelve is not an accident of history. As it happens,
human societies have historically had an average of about six percent of their
populations who were disposed to delinquency if not disciplined by the other 94
percent, who tend by nature to not engage in delinquent behavior even without
the sanction of law. However, whenever a majority of less than 94 percent has
attempted to impose its morality on the remainder by criminal laws, the result
has, in general, been counterproductive and even destructive of social cohesion
and respect for law and lawmaking. This indicates that a constitution should
require that any criminal laws be passed by a legislative majority of at least
94 percent.